State v. Bowman
| Decision Date | 10 November 2021 |
| Docket Number | NO. 99062-0,99062-0 |
| Citation | 498 P.3d 478 |
| Parties | STATE of Washington, Petitioner, v. Reece William BOWMAN, Respondent. |
| Court | Washington Supreme Court |
Gavriel Gershon Jacobs, Office of King County Prosecuting Attorney, 516 3rd Ave. Ste. W554, Seattle, WA, 98104-2362, for Petitioner.
Richard Wayne Lechich, Washington Appellate Project, 1511 3rd Ave. Ste. 610, Seattle, WA, 98101-1683, for Respondent.
David T. Sulzbacher, Attorney at Law, 1037 Ne 65th St. #80304, Seattle, WA, 98115-6655, Thomas E. Weaver Jr., Attorney at Law, P.O. Box 1056, Bremerton, WA, 98337-0221, Mark Bruns Middaugh, Attorney at Law, 600 University St. Ste. 3020, Seattle, WA, 98101-4105, for Amicus Curiae Washington Association of Criminal Defense Lawyers.
Nancy Lynn Talner, ACLU-WA, P.O. Box 2728, Seattle, WA, 98111-2728, for Amicus Curiae American Civil Liberties Union of WA.
La Rond Baker, King County Department of Public Defense, 710 2nd Ave. Ste. 200, Seattle, WA, 98104-1703, for Amicus Curiae King County Department of Public Defense.
Alexandria Marie Hohman, The Washington Defender Association, 110 Prefontaine Pl. S. Ste. 610, Seattle, WA, 98104-2626, for Amicus Curiae Washington Defender Association.
¶ 1 Nearly 50 years since their introduction, cell phones are widely recognized as an essential way for individuals to stay connected to one another. See, e.g. , Riley v. California , 573 U.S. 373, 385, 134 S. Ct. 2473, 189 L. Ed. 2d 430 (2014) (). As cell phones made text messaging a ubiquitous form of communication, we recognized that text message conversations constitute "a private affair protected by the state constitution from warrantless intrusion." State v. Hinton , 179 Wash.2d 862, 865, 319 P.3d 9 (2014). This court, in Hinton , held that an individual whose text messages are unlawfully searched on an associate's cell phone could challenge that search in a subsequent prosecution—rejecting the view of some of our sister states that any privacy interest in a text message is lost once the message is sent.1
¶ 2 In this case, we are asked to extend Hinton to prohibit law enforcement from using information obtained from the lawful, consensual search of a third party's cell phone to set up a separate text message exchange on a different cell phone between Reece Bowman and an undercover agent posing as Bowman's associate. Specifically, Bowman argues that both the search and the ruse violated his rights under article I, section 7 of the Washington State Constitution, as well as the Fourth Amendment to the United States Constitution, by intruding on a private affair without authority of law. We reject these arguments.
¶ 3 Consistent with long-standing precedent, we hold that a cell phone owner's voluntary consent to search text messages on their phone provides law enforcement with the authority of law necessary to justify intruding on an otherwise private affair. We also hold that a subsequent police ruse using lawfully obtained information does not constitute a privacy invasion or trespass in violation of either our state constitution or the United States Constitution. We reverse the Court of Appeals and reinstate Bowman's conviction, directing the trial court to modify his sentence as addressed below.
¶ 4 Agents from the Department of Homeland Security identified Reece Bowman as an alleged drug dealer after arresting and interviewing one of Bowman's associates, Mike Schabell, in an unrelated police operation. Police arrested Schabell again in February 2017, and Schabell consented to Agent Marco Dkane searching his cell phone. During the search, Dkane saw a text message string between Schabell and Bowman that suggested Bowman sold Schabell methamphetamine earlier that day. Using the cell phone number shown for Bowman on Schabell's phone, Dkane texted Bowman from his own phone, posing as Schabell looking to buy more drugs:
Clerk's Papers (CP) at 45-49; 2 Verbatim Report of Proceedings (VRP) (May 3, 2018) at 273-74. When Bowman arrived at the designated meeting place, Dkane confirmed Bowman's identity and police arrested him. They found 3.5 grams of methamphetamine on Bowman's person and another 55.2 grams of methamphetamine, digital scales, and $610 in cash in his car.
¶ 5 The State charged Bowman with possession of methamphetamine with intent to deliver in violation of the Uniform Controlled Substances Act, RCW 69.50.401(1), (2)(c). Before trial, Bowman moved to suppress all evidence against him and to dismiss the pending charges, arguing police obtained the evidence in violation of his privacy rights under article I, section 7 of the Washington State Constitution and the Fourth Amendment to the United States Constitution. Relying on our holding in Hinton , Bowman argued that police needed a warrant or exigent circumstances to access the text messages Bowman sent to Schabell's phone and to impersonate Schabell in the later ruse. The trial court denied the motion, distinguishing Hinton because "here, the police used his own phone and his own phone number to contact Mr. Bowman who actually questioned the caller." 1 VRP (May 2, 2018) at 98. The court determined the ruse did not violate Bowman's privacy rights because "police are allowed to use a tactic or ruse to contact a defendant as part of their police investigation." Id. at 99. A jury found Bowman guilty as charged.
¶ 6 Bowman appealed, and the Court of Appeals reversed his conviction in a published opinion, holding law enforcement violated Bowman's right to privacy under article I, section 7 of the Washington State Constitution. State v. Bowman , 14 Wash. App. 2d 562, 564, 472 P.3d 332 (2020). The court determined Hinton gave Bowman a privacy interest in his text message conversations with known contacts and that this right prevented Dkane from engaging him in communications posing as Schabell because Bowman "reasonably believed he was texting with a known contact." Id. at 569.
¶ 7 The State petitioned this court for discretionary review. Bowman conditionally cross petitioned for review of three separate issues that the Court of Appeals did not address: (1) whether the text messages sent by Dkane to Bowman's phone constitute a trespass, (2) whether the trial court improperly imposed a supervision fee for community custody, and (3) whether the judgment and sentence erroneously allows interest to accrue on legal financial obligations (LFOs). We granted the petition for review as well as the three issues raised in Bowman's cross petition. State v. Bowman , 196 Wash.2d 1031, 479 P.3d 1161 (2021). We accepted an amici brief from the Washington Association of Criminal Defense Lawyers, the American Civil Liberties Union of Washington, the Washington Defenders Association, and the King County Department of Public Defense.
¶ 8 The trial court correctly denied Bowman's motion to suppress evidence obtained from the police ruse because there was no unlawful search of Schabell's cell phone. Neither the search nor the ruse violated Bowman's privacy rights under the state and federal constitutions. We reverse the Court of Appeals and remand to the trial court to reinstate Bowman's conviction and modify his sentence, as described below.
¶ 9 Under article I, section 7 of our state constitution, "[n]o person shall be disturbed in his private affairs, or his home invaded, without authority of law." The United States Constitution provides, "The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated." U.S. CONST. amend. IV. This right extends to an individual's reasonable expectation of privacy. Katz v. United States , 389 U.S. 347, 360-61, 88 S. Ct. 507, 19 L. Ed. 2d 576 (1967) (Harlan, J., concurring). Our state's private affairs analysis "is broader than the Fourth Amendment's reasonable expectation of privacy." Hinton , 179 Wash.2d at 868, 319 P.3d 9 (citing State v. Young , 123 Wash.2d 173, 181, 867 P.2d 593 (1994) ).
¶ 10 The law enforcement conduct in this case did not violate either article I, section 7 of our constitution or the Fourth Amendment to the United States Constitution. While Bowman retained a privacy interest in the text messages he sent to Schabell, Dkane acted with authority of law in viewing the text messages based on Schabell's consent to search that phone. The ruse that followed simply capitalized on validly obtained information and did not intrude on Bowman's private affairs. Nor was the ruse a trespass under either the United States Constitution or our state constitution. The text messages sent by Dkane did not physically invade Bowman's cell phone or otherwise manipulate it, and Bowman suffered no trespass but instead willingly disclosed incriminating information.
¶ 11 In accepting Bowman's argument based on Hinton , the Court of Appeals improperly...
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